State Of Washington, V. I.g.g. ( 2021 )


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  •  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION ONE
    STATE OF WASHINGTON,
    No. 81657-8-I
    Respondent,
    ORDER WITHDRAWING AND
    v.                                  SUBSTITUTING OPINION
    I.G.G.,
    Appellant.
    The court on its own motion has reconsidered the opinion filed on June 28,
    2021. It has determined that the opinion should be withdrawn, and a substitute
    opinion filed; now, therefore, it is hereby
    ORDERED that the opinion filed on June 28, 2021 is withdrawn; and it is
    further
    ORDERED that a substitute unpublished opinion shall be filed.
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    STATE OF WASHINGTON,
    No. 81657-8-I
    Respondent,
    DIVISION ONE
    v.
    UNPUBLISHED OPINION
    I.G.G.,
    Appellant.
    APPELWICK, J. — I.G.G. appeals community custody conditions barring him
    from wearing gang paraphernalia, publicly conveying gang membership, or
    associating with any gang members.             He argues the conditions are
    unconstitutionally vague. We reverse and remand to strike the conditions.
    FACTS
    On June 18, 2020, Isaac I.G.G. pleaded guilty to unlawful possession of a
    firearm in the second degree and unlawful display of a weapon in juvenile court.
    The court sentenced him to 141 days of confinement and 12 months of community
    supervision. The trial court imposed community custody conditions in a “Gang
    Condition Appendix” over I.G.G.’s objection:
    1) You shall not, in public, wear, possess, use, or display any
    clothing, jewelry, emblems, badges, symbols, signs, visible
    tattoos, or body markings or any other items that shows [sic]
    evidence of membership or affiliation in any gang or that
    promotes gang affiliation.
    No. 81657-8-I/2
    2) You shall not, in public, communicate, either verbally or non-
    verbally, to convey any membership or affiliation in a gang, to
    promote gang activity, or to solicit others for gang membership.
    3) You shall not associate with any gang members, with the
    exception of family members in non-gang related activities, or
    while attending treatment or education classes as required.
    I.G.G. appeals.
    DISCUSSION
    I.G.G. argues the three conditions in the Gang Condition Appendix are
    unconstitutionally vague.     The State concedes that the first condition is
    unconstitutionally vague, but argues the conditions are otherwise constitutional.
    We review community custody conditions for an abuse of discretion. State
    v. Sanchez Valencia, 
    169 Wn.2d 782
    , 791-92, 
    239 P.3d 1059
     (2010). A trial court
    abuses its discretion when it imposes an unconstitutional condition. Id. at 792. We
    review constitutional questions de novo. State v. Wallmuller, 
    194 Wn.2d 234
    , 238,
    
    449 P.3d 619
     (2019).
    Due process requires citizens have a fair warning of proscribed conduct.
    U.S. CONST. amend. XIV; City of Spokane v. Douglass, 115, Wn.2d 171, 178, 
    795 P.2d 693
     (1990). A community custody condition is unconstitutionally vague if (1)
    it does not sufficiently define the proscribed conduct so that an ordinary person
    can understand the prohibition or (2) it does not provide sufficiently ascertainable
    standards to protect against arbitrary enforcement. State v. Padilla, 
    190 Wn.2d 672
    , 677, 
    416 P.3d 712
     (2018).          A community custody condition is not
    unconstitutionally vague “‘merely because a person cannot predict with complete
    certainty at which [their] actions would be classified as prohibited conduct.’”
    2
    No. 81657-8-I/3
    Sanchez Valencia, 
    169 Wn.2d at 793
     (quoting State v. Sanchez Valencia, 
    148 Wn. App. 302
    , 321, 
    198 P.3d 1065
     (2009), reversed by Sanchez Valencia, 
    169 Wn.2d 782
    ). A heightened level of clarity is required where, as here, a community custody
    condition implicates First Amendment protections because of the potential for a
    chilling effect on the exercise of First Amendment freedoms. State v. Bahl, 
    164 Wn.2d 739
    , 753, 
    193 P.3d 678
     (2008).
    Similar community custody conditions were held unconstitutionally vague in
    State v. Weatherwax, 
    193 Wn. App. 667
    , 676-681, 
    376 P.3d 1150
     (2016), rev’d on
    other grounds, 
    188 Wn.2d 139
    , 156, 
    392 P.3d 1054
     (2017). There, the court
    considered the following conditions:
    “That the defendant shall not wear clothing, insignia,
    medallions, etc., which are indicative of gang lifestyle. Furthermore,
    that the defendant shall not obtain any new or additional tattoos
    indicative of gang lifestyle.”
    ....
    “That the defendant not be allowed to have any association or
    contact with known felons or gang members or their associates.”
    Id. at 676-77.
    The Weatherwax court struck the first condition because “‘popular
    clothing items or specific colored items are frequently described as gang
    attire.’” 193 Wn. App. at 678 (quoting State v. Villano, 
    166 Wn. App. 142
    ,
    144, 
    272 P.3d 255
     (2012)). It echoed the Villano court’s holding that “‘[i]f
    the trial court intended to prohibit the wearing of bandana or particular
    3
    No. 81657-8-I/4
    colored shoes, it needed to provide clear notice.’” 
    Id.
     (quoting Villano, 
    166 Wn. App. at 144
    ).
    It held the second condition unconstitutionally vague for similar reasons,
    this time relying on federal case law. Id. at 679-81. The court noted federal cases
    have upheld bans on associating with gang members only when a specific street
    gang was included in the prohibition. Id. at 679; see e.g., United States. v. Soltero,
    
    510 F.3d 858
    , 865 (9th Cir. 2007) (prohibition on associating with “any known
    member of any criminal street gang . . . specifically any known member of the Delhi
    street gang”); United States v. Johnson, 
    626 F.3d 1085
    , 1090 (9th Cir. 2010)
    (“defendant may not associate with . . . a Rollin’ 30’s gang member”).            The
    Weatherwax court contrasted this with United States v. Green, 
    618 F.3d 120
     (2d
    Cir. 2010). 193 Wn. App. at 678-79. There, the Second Circuit struck down a
    condition prohibiting the defendant from the “wearing of colors, insignia, or
    obtaining tattoos or burn marks (including branding and scars) relative to [criminal
    street] gangs.” Green, 
    618 F.3d at 124
     (alteration in original). But, the Green court
    upheld another condition prohibiting associating with “criminal street gangs” which
    did not articulate a specific gang. 
    Id. at 123-24
    . Consistent with Soltero, Johnson,
    and other cases, it held that the term “criminal street gang” was sufficiently definite
    in this context primarily because the term has a clear statutory definition in federal
    law:
    “criminal street gang” means an ongoing group, club organization, or
    association of 5 or more persons—
    4
    No. 81657-8-I/5
    (A)    that has 1 of its primary purposes the commission of 1 or more
    criminal offenses described in subsection (c);
    (B)   the members of which engage, or have engaged within the
    past 5 years, in a continuing series of offenses described in
    subsection (c); and
    (C)     the activities of which affect interstate or foreign commerce.
    
    18 U.S.C. § 521
    (a); Soltero, 
    510 F.3d at 866-67
    ; Johnson, 
    626 F.3d at 1090-91
    ;
    see also United States v. Vega, 
    545 F.3d 743
    , 750 (9th Cir. 2008) (the term
    “criminal street gang” is sufficiently clear).
    The term “criminal street gang” is also defined in Washington law:
    “Criminal street gang” means any ongoing organization, association,
    or group of three or more persons, whether formal or informal, having
    a common name or common identifying sign or symbol, having as
    one of its primary activities the commission of criminal acts, and
    whose members or associates individually or collectively engage in
    or have engaged in a pattern of criminal street gang activity. This
    definition does not apply to employees engaged in concerted
    activities for their mutual aid and protection, or to the activities of
    labor or bona fide nonprofit organizations or their members or
    agents.
    RCW 9.94A.030(12). The statute further defines a “criminal street gang associate
    or member” as “any person who actively participates in any criminal street gang
    and who intentionally promotes, furthers, or assists in any criminal act by the
    criminal street gang.” RCW 9.9A.030(13).
    Considering these cases together, the Weatherwax court articulated the
    following rules regarding gang-related conditions:
    [G]ang-related conditions of community custody can be imposed as
    crime related, given the circumstances of the crimes. But, they must
    be limited to behaviors that signify gang membership, or association
    in or with an identified gang or gangs. Limits on association must be
    confined to felons, gang members, or gang associates in the sense
    5
    No. 81657-8-I/6
    defined by RCW 9.9A.030(13), or to other specifically described
    persons having a direct relation to the circumstances of the crimes.
    Weatherwax, 193 Wn. App. at 681.
    The conditions at issue here do not reference an identified gang or gangs.
    Nor do they reference RCW 9.9A.030 (12) or (13). They do not reference “criminal
    street gangs.” They reference “a gang” and “any gang.”
    Such a broad condition does not provide adequate notice under
    Weatherwax.     Nor does it provide sufficient clarity for an ordinary person to
    understand the prohibition. An ordinary person cannot be expected to know all
    potential gangs and their membership.1 And, as I.G.G. points out, the term “gang”
    unmoored from its statutory definition can encompass a number of organizations
    other than criminal street gangs. Some of the I.G.G.’s proffered definitions—“a
    gang of boys gathered around a pitcher” or “the gang I bowl with”—would be easily
    understood by an ordinary person as not included in a community custody
    condition.   But others—such as a “non-criminal biker gang”—could cause
    legitimate confusion in an ordinary person.
    I.G.G.’s gang related provisions do not identify a specific gang or gangs and
    do not reference “criminal street gangs” or the statute that defines them. They do
    1 In addition to the vagueness issues discussed here, the gang conditions
    appendix does not contain language requiring that a violation be intentional. As
    written, a person could violate these conditions by wearing a symbol that they are
    unaware indicates gang membership, or associating with a person that they do not
    know to be a gang member. We construe community custody conditions to require
    an element of mens rea. See Vega, 
    545 F.3d at 750
    . We thus read the gang
    condition appendix to prohibit only knowing violations of its conditions. See 
    id.
    6
    No. 81657-8-I/7
    not comply with the standards articulated in Weatherwax and are too broad for an
    ordinary person to determine what they prohibit.
    We reverse and remand for any necessary proceedings consistent with this
    opinion.
    WE CONCUR:
    7